Countdown to Chicago

Posted by David Hardy · 21 June 2010 08:19 AM

The custom is that each Justice gets at least one opinion from each two-week "sitting" on arguments. Coming into today's opinion releases, there were three opinions left from the sitting in which the Chicago case was argued, and three Justices who hadn't written an opinion from it. Today's four opinions included one by CJ Roberts, taking him out of the running. We have two Justices left -- Alito and Ginsburg -- and two opinions left, Chicago and Skilling v. US. The Court is scheduled to release more opinions on Thursday and Monday, a week from today.

UPDATE I'm not in on any plans, and couldn't talk about it if I were, but I'd be near certain that plans were made long ago for the next round(s) of suits, and that Alan Gura, far from being done, is about to become a very busy fellow indeed. The only question in my mind is -- how many sets of pleadings are out there, ready for filing?

Given the subject matter of the remaining two cases, Skilling and McDonald, I would bet that Justice Allito would be itching to tackle the Skilling opinion. That leaves Ginsberg to write McDonald. If matters fall out like this, do we get incorporation from Ginsberg with the caveat that state and local governments are given very wide lattitude to essentiallly regulate the right to keep and bear arms out of existence? I'm suddenly feeling sick to my stomach thinking about the near future state of affairs of our fundamental rights.

I'm not so concerned about what the decision will say, as I am whether the NRA and other gun rights organizations are ready to follow up with another round of litigation to capitalize on what this decision is gonna say, and extend its reach. Gura's goal was to get to Privileges and Immunities. Once this decision is released, Gura is done. Are the NRA, GOA, SAF, and other state level rights organizations ready to file suits and execute on further litigation?

There's already pending litigation in California that is on hold waiting for the results of _McDonald_, since it could possibly overturn existing precedent for the 9th Circuit (ie, all of the dismissals of lawsuits about gun laws on the grounds that the states are not bound by the Second Amendment). Just like _McDonald_ was filed as soon as the favorable ruling in _Heller_ was announced, I'm sure there are other cases waiting filing. What I'm MORE concerned about is the people who think we should immediately move to repeal the NFA or at least the '86 ban, such a move, done without building the legal groundwork through other cases, would likely be counter-productive.

As you may be aware you can have a flag flown over the capital in honor of special occasions.

I had one flown Monday. I was trying to time it with the opinion. That obviously didn't work out, but I got the flag that flew in the same month.

Anyway this is what I requested on the certificate:

In recognition of the incorporation of the Second Amendment to the Constitution of the United States of America, against the several states, by the Supreme Court of the United States. June 2010

The Right of the People to Keep and Bear Arms, Shall Not be Infringed.

You would not believe how bad they mis-worded the certificate. It's not even recognizable as to what I requested. I don't know who in Washington types the certificate, but they must be a minimum wage government employee. Or just anti-gun. Or can't read.

Nothing is a slam-dunk when it comes to the courts. If the court does not incorporate, I will fly my new flag instead of framing it. Can't ever have to many flags. I love my country, it the government that sometimes frustrates me.

Hiibel v NV was the last one that i thought was a slam-dunk and i was wrong.

GunGuys is a website run by Mark Karlin & Associates. Mark Karlin was VPC's Board Chair in 2007. There's a bunch of cross-posting between the sites and Karlin uses the same hyperbolic rhetoric that Josh Sugarmann at VPC does.

My guess: Roberts will write McDonald. This situation where each justice writes one opinion per sitting is custom, not law. Roberts decides, right? He may have had to sweet-talk Ginsburg, maybe offered her a consolation prize, but he will write McDonald. Willing to bet on it -- up to $100 for any merchandise at SimplyRugged.com -- I need a new holster, and Rob Leahy at Simply Rugged has designed one for me. I'd love for one of you to pay for it. Any takers?

My thoughts:
The liberals may have realized the left's long list of benefits from a P&I win vs the downside of mandating carry (Dred Scott's 'keep and carry arms whereever they went') in all fifty states instead of the current ~40 shall-issue ones, and Thomas would join them in a heartbeat to overturn Slaughterhouse, giving a Ginsburg sneak-attack. The strength of this opinion could be interesting, I doubt the liberals would go for strict scrutiny and Thomas might say forget it if they push for rational basis...

Or Alito with a blow-out 7-2 or better Due Process majority. I think Scalia or Roberts would have taken McDonald if it was going to be 6-3 or 5-4. Strict scrutiny would be definitely on the playing field with an Alito opinion.

Of course, the CJ could always take McDonald for himself and Alito gets Skilling, leaving Ginsburg with a goose-egg for whatever reason, maybe she has a tough opininon from another sitting. The dynamic of the three honest services cases makes it interesting.

In my view Stevens has Bilski, hopefully it will be as pro-consumer as his Betamax decision from the 80s.

Dusty: Minority opinions are not as rigorously defined by custom as majority opinions.

KMAN wrote, "Once this decision is released, Gura is done. Are the NRA, GOA, SAF, and other state level rights organizations ready to file suits and execute on further litigation?"

That's about the silliest thing I've read. Alan Gura is no where "done" with what he'll be doing for the RKBA, and that's not from any "insider info" but rather from common sense. This man won Heller (which established 9-0 that the 2nd Amendment deals with an individual right), and the man will win McDonald (which will incorporate the 2nd on the States, whether by DP or P/I, it's an Alan Gura win).

What NRA, SAF, and/or GOA does next remains to be seen. Likely, so long as SAF is willing to follow the advice of Gura, he'll remain associated with SAF and SAF will get credit for Gura's work. Gura will go on regardless of SAF, or NRA, or GOA.

Yes, much of his work is built on the foundations laid and built by the "old turks," but Alan Gura distinctly is the "young turk" who will be dominating the field for the next 25 years.

And Gura seems to communicate that he strongly believes in and supports the right to carry. He's not "done."

It is so misleading to call Heller 9-0 in favor of an individual right that I would say it clearly crosses the line into being false. You have to remember that the Heller minority had a different definition of what "the right" is when it comes to the 2nd Amendment. They didn't specify exactly what right the 2nd Amendment protected, probably because they couldn't come up with a coherent definition consistent with the government's power to disarm the people. Basically they used what the Emerson panel called the sophisticated collective rights theory, i.e. Individuals have the right to keep and bear arms, but only if they're enrolled in the state militia with the permission of the state government. Technically you could call that an individual right, but it is not an "individual right" in the sense most people mean it.

Because of how the Heller minority interpret the 2nd Amendment, I think it's very unlikely they will vote in favor of incorporation - because they don't think there is anything to incorporate. They certainly don't think bearing arms is a "Fundamental" right. They don't think it's a right at all.

There is not enough people realizing or getting the word out that if Obama is re-elected, he will probably replace one of the justices of the Heller majority with an anti-gun justice. Then Heller will either be overturned or weakened to uselessness by allowing huge taxes or months of training to acquire guns. Even if you still get yourself a gun, so many fewer people will own guns, that political support for guns will wither away. In other words, a vote for Obama is a vote to cross out the 2nd Amendment. You won't loose all your guns right away, but the foundation will be laid to take your guns if you vote for Obama.

Critic wrote, "[I]f Obama is re-elected, he will probably replace one of the justices of the Heller majority with an anti-gun justice. ... In other words, a vote for Obama is a vote to cross out the 2nd Amendment."

Agreed, absolutely. By 2016, there's a good chance that something will happen to one of the five good-guys (Scalia, Thomas, Roberts, Alito, Kennedy). If replacement is made by Obama, he'll go with an anti-RKBA person. The 2012 election is crucial.

My fear, however, comes from a statement made by a friend: "There are two parties: the evil party and the stupid party. I belong to the stupid party." ... In our two-party system, we're depending on the Republicans to get rid of Obama, and they tend to be the "stupid party." God forbid, but we cannot survive another McCain-because-he-deserves-it-for-past-service, or a Palin-because-she's-hot!

Palin is a "rock star," but no one should EVER again consider her as a political candidate for anything. It's 2010, and I don't see any credible, electable Republican in the offing.

Critic writes "It is so misleading to call Heller 9-0 in favor of an individual right that I would say it clearly crosses the line into being false."

It depends on the context.

In the context of real-world policy, then I agree that the dissenters were against an effective individual right. I agree that this is very important in practice. As with 1A "rights", in practice it is nearly useless to have a 2A "right" when it is weighs so lightly in balancing considerations that states can encumber basic aspects of the right (e.g., having a weapon anywhere you might particularly need to use it, or speaking or publishing in a way that could influence an election) with prerequisites far stricter than those for stock "privilege not a right" examples like driving on the public roads.

However, in the context of open declarations of principle, the 9-0 victory here is pretty clear. And though sadly that context is substantially independent of real-world policy, that does not make it completely irrelevant. In particular, it is very relevant to positions which were staked on legal principle by various gun control organizations, especially the "our client is the constitution" ACLU, and by any number of academic legal authorities, pundits, and politicians. They were prestigious and influential, and they were numerous and loud: David Hardy alone might be able to clog your internet connection for quite some time by stringing together brief examples he's dealt with over the years. They were also unwise to have chosen a valley of logical quicksand as a strongpoint, and to have persisted in trying to defend it with webs of misdirection and deceit.

A decisive victory was won in a battle on ground that the anti-RKBA coalition chose to make central to their campaign strategy. Perhaps someday in hindsight it may be clear that the anti-RKBA coalition is so strong and resilient, or the pro-RKBA coalition is so weak and dysfunctional, that even such a defeat isn't a significant setback for the anti-RKBA campaign. But even if so, hindsight is unlikely to begrudge the winners of the battle adding some "9-0" verses to their battle songs as they march onward to the rest of the campaign.